A new standard for States with nuclear weapons outside the NPT

Three states with nuclear weapons remain outside the Nuclear Non-Proliferation Treaty (NPT). Now the Commission on “Eliminating Nuclear Threats” helpfully proposes treating them as if they were nuclear weapon states within the NPT; but only if they agree to “uphold non-proliferation and disarmament norms and practices at least as rigorous as those accepted by nuclear-weapon states under the NPT.”

India, Israel, and Pakistan all have nuclear weapons, yet all are, in the arcane logic of the NPT, non-nuclear weapon states. That’s because all three acquired nuclear weapons after the Treaty’s 1 January 1967 cut-off date for recognizing nuclear powers. That makes them states with nuclear weapons rather than nuclear weapon states (NWS), and under the normative terms of the NPT they are obliged to disarm and join the NPT as non-nuclear weapon states. Indeed, that was the call that was reiterated by the UN Security Council at its special meeting on nuclear non-proliferation and disarmament, chaired by US President Barak Obama, last September.

But that doesn’t mean it’s going to happen. The reality, of course, is that the three will not join as non-nuclear weapon states, and for them to join as nuclear weapon states would require an amendment to the Treaty – and that will definitely not happen.

Thus the international community is faced with a nuclear governance status quo that is counterproductive. It keeps three important states permanently outside the global nuclear nonproliferation and disarmament regime. Hence, the international community and, more recently, the International Commission on Nuclear Non-Proliferation and Disarmament (ICNND)[i] have been exploring alternative approaches.

India’s status as a state with nuclear weapons acquired a level of formality, approaching recognition of it as equivalent to a NWS, when the Nuclear Suppliers Group exempted it from its prohibition on civilian nuclear cooperation with any state not under fullscope safeguards – that is, any state that operates nuclear programs not subject to inspections by the International Atomic Energy Agency (IAEA). Pakistan has arguably won a similar recognition by default. The UN Security Council Resolution (#1172 of 1998) that required India and Pakistan, in the wake of their 1998 nuclear tests, to end their nuclear weapons and ballistic missile programs, was never heeded and was rendered irrelevant by the Nuclear Suppliers Group action.

So we now have a situation in which India and Pakistan are essentially accepted as nuclear weapon states, but without being formally bound by any of the obligations that accrue to Nuclear Weapon States in the NPT – notably the disarmament obligations under Chapter VI. Accepting the same “norms and practices” as those assumed by nuclear weapon states under the NPT does not set a very high bar, but it is nevertheless a standard to be met.

For example, all the NWS in the NPT have signed the Comprehensive Test Ban Treaty (CTBT), while India and Pakistan have not (US and China, as well as Israel, have signed but not ratified). The NWS have all declared moratoria on producing fissile materials for weapons purposes pending the negotiation of an FMCT,[ii] India and Pakistan have not. Indeed, India is positioned to accelerate production when it imports uranium – possibly from Canada – for civilian purposes because then its domestic supply can be more fully dedicated to military purposes. That in turn could put pressure on Pakistan to try to do likewise – the phrase for that kind of competition is a nuclear arms race.

Israel obviously also remains outside the constraints and obligations of the NPT – and NPT States have agreed that a remedy to Israel’s violations of nuclear norms will have to be pursued in the context of efforts toward establishing the Middle East as a nuclear weapons free zone and a zone free of all weapons of mass destruction.

Canada, of course, is actively pursuing a civilian nuclear cooperation agreement with India, and we’ll see whether Foreign Affairs is able to attach any nonproliferation conditions.[iii] It should, for example, be clear, at a minimum, that any further test would immediately end all cooperation – the preference, of course, would be that India sign the CTBT.[iv] In particular India should be pressed to offer credible assurances that it has joined the five officially recognized nuclear weapon states in halting all production of fissile material for weapons purposes.

While Canada is unlikely to succeed in making these conditions part of the forthcoming deal, in trying it at least has the support of the International Commission on Nuclear Non-Proliferation and Disarmament (ICNND). The Commission advocates an end to the long-term formal policy of trying to isolate the non-NPT states and to refuse to recognize the reality of their status as states with nuclear weapons. Instead, said the ICNND, recognize reality and find ways of drawing them into non-proliferation and disarmament arrangements. To that end, the ICNND encourages civilian nuclear cooperation with such states (something that was virtually universally rejected until the US and the Nuclear Suppliers Group cooperated to give India an exemption from that provision). But cooperation says the ICNND should not be without some conditions attached: like satisfying “certain objective criteria showing their general commitment to disarmament and non-proliferation…including ratification of the CTBT, and [a] moratorium on unsafeguarded production of fissile materials pending negotiation of a fissile material production cut-off treaty.”[v]

States with nuclear weapons that are not bound by the NPT constitute a major gap in the nuclear nonproliferation and disarmament regime. It’s a gap that won’t be easily bridged, but the ICNND has got the basic architecture right.

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